' Mohabat Khan, has presented this Writ Petition under Article 9 of the Provisional Constitution Order, 1981 for a necessary direction to Station House Officer, Police Station Saddar Faisalabad to register a criminal case under sections 228, 324, 342, 506/34, P.P.C. Against respondents Nos. 1 to 3 i,e, Ata Muhammad, Sub-Inspector of Police, C.I.A. Staff, Muhammadabad Post, Faisalabad, Shaukat son of Muhammad Bakhsh, Police Constable No, 492, and Sarfraz son of Muhammad Bakhsh, Head Constable posted in the Office of D.I.-G. Police, District Police Lines, Faisalabad.
2. To properly appreciate and reach the controversy giving rise to the present constitutional petition, facts necessary and relevant briefly stated are that on the report of Muhammad Yousaf son of Shahmand, respondent No,4, Police registered a case under sections 380 and 457, P.P.C. On 24-11-1982 through F.I.R. No, 312/82. None was named or shown suspected in the First Information Report. Petitioner, his brother Noora, his nephew Dost Muhammad were joined in the investigation by the Police at the instance and behest of Muhammad Yousaf, a relation of the petitioner between whom and the petitioner deep-seated enmity existed. Petitioner along with abovenoted persons was kept in detention for 15 days by the Police. However, no incriminating material was recovered from them. They were not formally put under arrest by the Police. Meanwhile, certain respectables/notables of the village approached Muhammad Yousaf and the Police to convince then that these three detenus were in no way connected with the offence and were falsely enroped. Muhammad Yousaf, respondent No,4, insisted that he will feel satisfied if Dost Muhammad, Lambardar of the village, and Shahmand, Member of the Union Council were to take oath on Holy Quran about their innocence and false involvement. Failing this oath, the petitioner alongwith his companions must pay a sum of Rs,60,000 to him. This offer was accepted and consequently a promissory note in the sum of Rs, 60,000 was executed in favour of one Sikandar, a cousin of Muhammad Yousaf, by one Ajmer, nephew of the petitioner, on 13-12-1982. Petitioner, however, was tricked and Sikandar was made to run away alongwith the promissory note at the instance of said Muhammad Yousaf. Thereafter, respondent No,4, Muhammad Yousaf, demanded cash security of Rs,60,000 to be kept in deposit with one Jafar, his uncle, before the special oath, as proposed, was taken. This offer too was accepted. Gold ornaments weighing 36 tolas were deposited in trust with the said Jafar. Oath was then taken about the innocence of the petitioner and his companions. Consequently, the petitioner, alongwith his two companions was released from Police custody/detention. This did not end the matter. On the demand for return of ornaments, Dost Muhammad, nephew of the petitioner was again arrested by the Police. Against this illegal detention, the petitioner approached High Court through Cr. Misc. No, 134/H of 1983 against respondent No, 5, Station House Officer and others. The S.H.O. Was directed to produce the detenu Dost Muhammad before the High Court on 10-4-1983. Respondent No,5, however, avoided to receive the notice issued from the High Court and instead, arrested real nephew of the petitioner on 8-5-1983 purporting to act under section 54 of the Code of Criminal Procedure in connection with a case registered through F.I.R. No,189/80. Respondent No,5, S.H.O., also took into possession 36 cattleheads and .12 bore licensed gun of the petitioner. Cr. Misc. Petition noted above was adjourned from 10-4-1983 to 18-4-1983 and then to 27-4-1983 and thereafter, to 8-5-1983. During the interval, petitioner presented Writ Petition No, 1515 of 1983 in the Lahore High Court, Lahore, seeking restoration of his cattle and .12 bore licensed gun. Contempt petition was also moved. Due to pressure and harassm ent by the local police, the petitioner had to withdraw his case from the High Court whereafter his nephew and son were released by the Police. Cattleheads and the gun were also restored to him by the Police. Petitioner's miseries even then did not end. Once again, the petitioner was arrested by respondent No,5 on 10-5-1983 in connection with the earlier criminal case F.I.R. No, 312/82, dated 24-11-1982. Petitioner was remanded to the Police custody in this case till 15-7-1983. Police did not succeed in recovering any material against the petitioner even during this long agonising period of police remand. Petitioner was enlarged on bail by Ilaqa Magistrate on 21-7-1983. The said criminal case was consigned to record as untraced for lack of evidence against the petitioner. When Jafar, a relation of Muhammad Yousaf, did not return the golden ornaments given to him in trust, petitioner and others approached Civil Court for return of their valuables and instituted four civil suits against him which are still sub judice. Still not satisfied, Muhammad Yousaf, in conspiracy with Shaukat, Police Constable, posted at C.I.A. Staff, Muhammad Abad, Faisalabad, respondent No,2, and Sarfraz, brother of Shaukat, posted as Head Constable of Police in D.I.-G's Office, Faisalabad, managed transfer of investigation to respondent No,1. It may not be out of place to make a mention here that the two sisters of Shaukat and Sarfraz are married to Allah Bakhsh and Allah Yar who are said to be cousin of Muhammad Yousaf, respondent No,4 in the present writ petition. Respondent No,1, notwithstanding that the petitioner was on bail under order of a Magistrate, once again arrested him on 25-7-1984 under section 54, Cr.P.C. In yet another criminal case F.I.R. No, 16/84 registered under section 380/457, P.P.C. Petitioner in this case was remanded to police custody from 26-7-1984 to 1-8-1984. Finally he was discharged vide order, dated 1-8-1984 by a Magistrate. On 30-7-1984. However, when in police custody on remand, petitioner aged 75 years, a well to do and a respectable zamindar of his area was taken to his Chak No, 228/R.B. By respondents Nos. 1 to 3. It is stated in the writ petition that he was made naked and was given shoe-beating on his buttocks. It is also stated that respondents Nos. 2 and 3 Shaukat and Sarfraz also spat on his face at the behest of respondent No,1. Respondents Nos. 1 to 3, therefore, committed these acts of indecency in the presence of several persons whose names have been given in para. 8 of the writ petition. After the petitioner was discharged by the Magistrate, he approached the Police Officer, respondent No,5 for registration of a criminal case under sections 228/323, 342, 506/34, P.P.C. Against the respondents Nos.1 to 4 but when his efforts failed to bring out any fruitful results, he approached this Court under its constitutional jurisdiction praying for issue of an appropriate writ, directing respondent No, 5 to register a case against respondents Nos.1 to 4. These facts which have been narrated above, have been taken from the writ petition presented in this Court.
3. On 8-8-1984, my learned brother Fazal-e-Mahmood, J. Made the following order:- "On the oral request of the learned counsel for the petitioner, D.I.-G., Faisalabad Range is hereby impleaded as respondent No,7 to this writ petition.
(2) This Court is not presently minded to send for the D.I.-G. Personally. However, this Court cannot permit abdication of their functions by the superior police officers whose duty it is to look into the grievances of the citizens against their own subordinates. Should it be found that the statutory functionaries are failing to perform their duties, this Court will not hesitate to take proper proceedings in the matter. However, I asked the learned counsel for the petitioner whether he had approached the D.I.-G. Of the range, his answer is that he has not been able to do so.
(3) I would accordingly direct respondent No, 7 to look into the grievances of the petitioner personally and for that purpose the petitioner shall also appear before him during this week.
Respondent No,7 shall thereafter submit a report to this Court before the next date of hearing.
(4) Case to come up on 12-8-1984." On 12-8-1984, the Court observed:- "There is a written request from the D.I.-G., Faisalabad Range asking for time in view of the fact that the petitioner appeared before him on 9-8-1984 while the case is fixed for 12-8-1984 i,e, today.
(2) I have no manner of doubt that the D.I.-G., who occupies an important supervisory position in the police force will ensure that the police agency acts in a just manner and there is no harassm ent of any citizen at its hand. This Court has taken cognizance of the matter and the consequences can be well-anticipated if any delinquency is found on the part of any statutory functionary:
(3) The time is extended. To come up on 19-8-1984 before any available Bench."
4. The Deputy Inspector-General of Police, Faisalabad Range, Faisalabad submitted a report on 23- 8-1984. The report runs:- "Kindly refer to your Memo. No,22596/Writ, dated 8-8-1984 and this office Memo. No,12243/C, dated 9-8-1984.
(2) As desired, the petitioner Mohabat Khan son of Walla, caste Baar Bhatti Rajput, resident of Chak No, 228/R.B., Tehsil and District Faisalabad, was heard by the undersigned personally and his grievances were looked into.
(3) Brief facts of the case are that a case under section 457/380, P.P.C. Was registered at P.S. Seder, vide F.I.R. No, 312, dated 4-11-1982 on the complaint of one Yousaf son of Shahmand, resident of Chak No, 228/R.B., P.S. Sadar, Faisalabad, who alleged that on the night between 19/20-11-1982 his house was burgled and ornaments valuing Rs,2,400 were stolen. The complainant Muhammad Yousaf further stated that definite value of stolen property would be disclosed by his brother Muhammad Yaqub, who was not present. Subsequently Muhammad Yaqub escalated the stolen property from its original value of Rs,2,400 to Rs,63,300 because, according to him, some cash alongwith ornaments was stolen. None was nominated in the F.I.R. However, the petitioner Mohabat alias Mohabati was made to join the investigation. Some other persons were also suspected to have committed the offence, but subsequently let off for want of further proof against them.
Further developments have been that one Amjer was made to execute a promissory note on behalf of Mohabat alias Mohabati equal to the value of Rs,60,000 on 13-12-1982 in the name of one Sikandar who is a cousin of the complainant party. Besides this, Mohabati's ornaments weighing 27 toles were handed over to the complainant party on the understanding that if he was found innocent, all his belongings would be restored to him, otherwise as decided by the elders and 'Punchiat' on 13-12-1982, according to the custom of the areas, the valuables would stand forfeited in favour of the complainant party. Since then there has been no progress in the investigation of the case, though the Police has contended that Mohabati had confessed before the 'Punchiat' about the commission of offence by his son and others.
(4) As the Police have failed to incriminate Mohabati's son with the offence by bringing convincing material on the file or recover the stolen property, the Police officials concerned are being dealt with departmentally. As regards the restoration of the amount and ornaments to Mohabati, this aspect of the matter is being legally examined in order to proceed further according to law.
(Sd.) MUSHTAQ AHMAD, ' Deputy Inspector-General of Police. Faislabad ' Range, Faisalabad".
' Another report, dated 22-9-1984 by Mr. Mushtaq Ahmad D.I.-G. Faisalabad Range has also been submitted to this Court which reads:- "Continuation of this office letter No, 13712/C, dated 9-9-1984.
' As desired, the allegations contained in paras. 8 to 14 of the petition were again looked into. A detailed enquiry into the allegations levelled against Police Officials as well as complainant of case F.I.R. No, 16/84, registered under section 457/380, P.P.C. On 14-1-1984 at P.S. Nishatabad, was held.
Special emphasis as well as focus of probe was fixed on the allegations mentioned in pares. 8 to 14 in Writ Petition No, 3506/84. The petitioner in his own petition has mentioned the names of Dost Muhammad Lambardar, Shah Muhammad, Ex-Member Union Council, Haider as well as other inhabitants of the Chak who were examined previously but they were again called to give statements, keeping in view the abovementioned specific allegations. Out of these wtinesses only Shah Muhammad has corroborated the allegations while Dost Muhammad Lambardar, Haider and 15 other persons namely Ahmad son of Rajada, resident of Chak No, 228/R.B., P.S. Saddar, (2) Ali Muhammad son of Raja, resident of Chak No, 228/R.B., (3) Jafar son of Mokha, resident of Chak No, 228/R.B., (4) Muhammad son of Chawa, (5) Amanat Ali son of Mehmood, (6) Shahid son of Noora,
(7) Ahmed son of Sikandar, (8) Ghulam Abbas son of Ahmad, (9) Shafique son of Lehana Khan, (10)
Shahmand son of Pir Bakhsh, (11) Falak Sher son of Ahmad, (12) Muhammad Aslam son of Sultan,
(13) Allah Ditta son of Mokha, (14) Muhammad Munir son of Suja and (15) Daulat son of Shabbir, residents of Chak No, 228/R.B. Police Station Saddar have categorically denied the charges and refuted any such happening in front of them on 30-7-1984 at any time of the day. They were of the unanimous view that though excess was committed to certain extent with the petitioner by the complainant of thecase, but as far as these allegations are concerned, no reliability or genuineness can be attributed to them and they were prepared to take oath to prove the truth of their statements.
(3) Chaukidar of the Chak was also examined. He had the same statement and had nothing to differ with other persons,except Shah Muhammad. It is strange that such an ugly incident had taken place, according to the petitioner, in a small Chak where nobody could come forward to strengthen his statement or to follow the truth and justice.
(4) According to the investigation and case diaries, case diary No,53, dated 30-7-1984 revealed that S.1., Atta Muhammad had interrogated the petitioner within the premises of P.S. Peoples Colony and on the next day he had also continued his proceedings in the same P.S. Likewise, the record of the P.S. Indicates that the petitioner had not been brought out during these two days and as such these allegations are refuted if the weightage is given to the police record.
(5) The findings of this enquiry in this particular case are that no such incident had taken place in the Chak, as no reliable witness, except Shah Muhammad, who is the only interested and partial person collaborating with the petitioner came out. So, there is no alternative.But to dispose of the enquiry with a firm belief that no incident of this sort took place on 30-7-1984 in the village and whatever has been stated by the petitioner is absolutely based on falsehood.
(6) The police officials concerned are being dealt with departmentally.
(Sd.)
(MUSHTAQ AHMAD), ' Deputy Inspector-General of Police, Faisalabad Range, Faisalabad."
5. I have heard learned counsel for the petitioner and Mr. Akhtar Shabbir, learned Assistant Advocate-General. Learned counsel for the petitioner has submitted that the facts reported to the Police Officer, respondent No, 5 did disclose commission of a cognizable offence by respondents Nos. 1 to 4 and it was his legal duty to register a case against the delinquents under section 154 of the Code of Criminal Procedure. Since respondent No, 5 has failed to perform his public duty enjoined upon him by law, the petitioner is entitled to a writ of mandamus directing the respondent No, 5 to perform his public duties in the matter of a registration of a criminal case. When a report is lodged with a competent Police Officer it has been contended, which report shows commission of a cognizable offence, it then becomes the legal duty of the officer to whom the facts have been reported to register a case and to proceed to investigate the matter reported to him, under the succeeding provisions contained in the Code of Criminal Procedure. Reliance has been placed upon:-
(1) M. Anwar Barister-at-Law v. The Station House Officer, Civil Lines Police Station, Lahore and another PLD 1972 Lah.
493.
(2) Haji Muhammad Khan v. Ch. Khizar Hayat and three others PLD 1977 Lah.
424.
(3) Muhammad Shah and 3 others v. The State 1982 PCr.LJ 124.
' Learned Assistant Advocate-General in reply has placed reliance on:-
(1) Muhammad Ijaz v. S.H.O. Police Station Rajana, Faisalabad 1979 SCMR 490.
(2) Jamshed Khan v. Muhammad Akram Khan and others 1975 SCMR 149. ' to contend that the petitioner has an equally efficacious alternate remedy available to him at law and as such a direction should not be issued to respondent No,5 for registration of a criminal case against three police officials and Muhammad Yousaf. The petitioner will be well-advised to approach the competent Court of jurisdiction for redress of his grievance through a complaint.
6. Section 154 of the Code of Criminal Procedure reads:- "154. Every information relating to the commission of a cognizable offence if given orally to an officer incharge of police station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf."
7. A bare reading of the section shows that whenever an information relating to the commission of a cognizable offence is given to an officer Incharge of Police Station either orally or in writing he is required by law to reduce it to writing and then proceed to investigate the alleged offence under section 156 of the Code of Criminal Procedure. In case of M. Anwar PLD 1972 Lah. 493, Sardar Muhammad lqbal, J. (as his Lordship then was) construed the provisions of section 159, Cr.P.C. And observed:- "If there is an information relating to the commission -of a cognizable offence, it falls under section 154 of the Code of Criminal Procedure, and a police officer is under a statutory obligation to enter it in the prescribed register. The condition precedent is simply two-fold; first, it must be an information and secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. A police officer is bound to receive a complaint when it is preferred to him, or where the commission of an offence is reported to him orally he is bound to take down the complaint. If he does not incorporate in the register a complaint so made, he fails to perform a statutory duty as a public servant and, therefore, renders himself to be dealt with by his superior officers for neglect of duty. Thus, it does not depend on the sweet will of a police officer who may or may not record it. The information referred to in section 154 of the Code of Criminal Procedure appears to be something in the nature of a complaint, or accusation, or at least information of a crime, given with the object of putting the police in motion in order to investigate. In the case of a first information, it is not required by law that the police officer is to receive it only if it is given in writing and to record it only if in his opinion it is correct. The question whether or not it is correct depends on the investigation which a police officer is to conduct under section 157 of the Code of Criminal Procedure. The guarantee of the correctness of the first information is ensured by section 182 of the Pakistan Penal Code under which if any person gives the first information statement to a police officer which is recorded under section 154 of the Code of Criminal Procedure, and if it ultimately turns out to be false, the informant shall be liable to punishment with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
' In Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others PLD 1977 Lail. 424 a Division Bench of this Court consisting of Sardar Muhammad lqbal, C.J. And Aftab Hussain, J. (as their Lordships then were) dealing with the provisions of sections 154 and 157 of Code of Criminal Procedure observed:- "The provisions of sections 154 and 157 of the Criminal Procedure Code are different in scope. The section which is applicable to a case where the First Information Report is given by some other person and the action is not taken suo motu by the officer incharge of a police station, would be section 154 which makes it incumbent upon such officer to reduce in writing the information given or get it so reduced and then to enter it in the book kept for this purpose. The provisos to section 157 are applicable only to investigation and not to the recording of the First Information Report.
Sections 154 and 157 deal wtih different contingencies. The former section provides for the recording of the F.I.R. At the instance of a complainant while section 157 deals with the procedure for investigation of any cognizable offence. The later provision leaves it to the judgment of the relevant police officer to refuse to investigate in certain cases where for example there is no sufficient ground for entering on an investigation. But this power should not be confused with his responsibility to record the First Information Report. He has no choice in the recording of the First Information Report though he has a discretion in the making of investigation or refusing to make it on the grounds given in section 157."
' In Suleman v. The S.H.O., P.S. Mitha Tiwana, District Sargodha and 2 others 1982 P Cr. L J 125 this Court observed:- "The provisions of section 157 are not intended to empower the officer incharge of police station to postpone registration of cases when definite information has been given to them, till they had held an inquiry of their own. It is to be observed that section 157 deals only with investigation of a case which a Police Officer may undertake either on the basis of definite information or suspicion; its provisions cannot be used to postpone registration of cases till preliminary inquiries have been held by the Police Officer."
' However the Court did not issue any direction to the S.H.O. For the registration of the case. It observed:- "All the evidence which the petitioner propose to lead in support of the allegations made by him is already in his possession and the investigation if conducted by the Police is not going to advance his case any further. He has adequate remedy available by way of private complaint."
' In case of Jamshed Ahmad v. Muhammad Akram Khan and another 1975 SC MR 149 relied upon by learned A.A.-G., the direction was not issued by the High Court on the ground that in respect of the same transaction a case had already been registered against the petitioner as one of the accused therein. Leave to appeal was refused by the august Supreme Court with the observations made in paragraph 3 of the report which reads:- "We are not impressed by the argument. A perusal of the record shows that on receipt of the petition, the learned Judge had called for a report from respondent No,1 who gave three reasons for the non-registration of the case at the instance of the petitioner: Firstly, that no case could be registered against the Tehsildar/Sub-Registrar, whom the petitioner wanted to rope in as one of the accused-persons, without the previous approval of the Provincial Anti-Corruption, Council/Divisional Anti-Corruption Committee. Secondly, that according to his information the report sought to be recorded was false, and thirdly, that a case of forgery and cheating etc. Was already under investigation in respect of the same transaction, the petitioner having been named as one of the accused therein.
' The petition could be thrown out on the short ground that the High Court was under no obligation to grant the relief prayed for by the petitioner. It was a matter resting entirely in its discretion and there is nothing to indicate that it was improperly exercised. Even otherwise, by no means does the impugned order shut the door on the petitioner who is at liberty to initiate criminal proceedings by lodging a complaint. The position is too well-known to be reiterated that the Supreme Court does not sit as a Court of appeal and interferes only in cases of grave injustice, the present case being certainly not one of those."
' In case of Muhammad Ijaz v. The S.H.O. Police Station, Rajana, Faisalabad 1979 SCMR 490 Writ Petition was dismissed by learned Single Judge of the High Court by a short order, dated 9-6-1979 which reads:- "The entire evidence in this case is available to the petitioner. No further investigation is to be made. The petitioner should, therefore, save time and approach the trial Court straightaway. Any order asking for registration of a case and investigation would rather result in waste of time. This petition is, therefore, dismissed in limine."
' Against the dismissal order, leave to appeal was refused by the august Supreme Court and reliance was placed on the case of Jamshed Ahmad v. Muhammad Akram Khan and another 1975 SCMR 149.
8. It is inalienable right of every citizen of this country and of every other person for the time being within the sovereign limits of Pakistan to enjoy the protection of law and to be treated in accordance with law. This is so in accordance with Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Every person regardless of his status in society whether lowly or highly placed, is entitled to be dealt with and treated in accordance with law to which he is subject. Police is no exception to this general rule. It has always been the high tradition of this Court to stand between the citizen/subject and any encroachment of his right by the executive or any authority however high subject to availability of its jurisdiction. This Court is not respector of persons and its endeavour is and must be to ensure that the voice of justice shall always be heard. In the case under consideration, the petitioners, it is stated in the petition, was mala fidely dealt with. He was taken to his village and allegedly made naked by respondents Police officials. In that state of condition he was allegedly given shoe beating on his buttocks. Besides, it is stated that Shaukat and Sarfraz spat at him at the instance of respondent No,1. Anybody who, enjoyed a little self- respect, to be dealt with like this in his own village in the presence of those, amongst whom he had passed his days of life, was sufficient to raze his respect to the ground making it well nigh impossible from him to pass on the rest of the days of his life respectably. This act must have done incalculable harm and damage to image and the personality of the petitioner, which he may have taken years to build.If the facts stated in the writ petition are true, it depicts a sad state of affairs.
Police which is expected to protect the rights of the people against encroachment by others, in this case, allegedly has itself violate the rule of law. The acts attributed to respondents Nos. 1 to 3 in the writ petition cannot at all be given protection under law of the land though committed during the course of investigation. The police is no supposed to transgress the limits of law imposed upon them. It was contended on behalf of the State that the petitioner has an alternate remedy available to him inasmuch as if so advised he can file a complaint against the conduct of the relevant Police Officials. Right to file a complaint is always available to the aggrieved person. A question which arises for consideration in the case is whether in the facts and circumstances of this case, the petitioner's grievance should be left to be dealt with in a complaint case or that a direction under Article 9 of the Provisional Constitution Order be issued for registration of a case against the delinquents including police officials. I have examined the facts and circumstances of this case with great anxiety. The result of this consideration persuaded me to take the view that the case as presented does call for a direction to the Police to register a case against respondents Nos.
1 to 4 under penal law of the land. Station House Officer, Police Station Saddar, Faisalabad, therefore, is directed to receive a written complaint from the petitioner and acting in accordance with provisions of section 154 of the Code of Criminal Procedure, register a case against respondents Nos. 1 to 4 and then proceed in accordance with law. Since the conduct of three police officials, respondents Nos. 1 to 3 comes in question in this case, the Superintendent of Police, Faisalabad, must ensure that investigation is handled by a person absolutely impartial and unbiased leaving no traces of grievance to the petitioner. Any observation made in the preceding paragraphs, will not in any manner affect the course of investigation by the police, which shall proceed in accordance with law strictly on its own merits.
9. With these observations writ petition is disposed of.